COA to Cox: "You're fired!"

Last week, the Michigan Court of Appeals published its opinion in the Attorney General's case against former Wayne County Circuit Judge Mary Waterstone, and in doing so, fired the entire Attorney General's Office and discharged them from any further responsibility for the prosecution.

In the People v Mary Waterstone, presented to the Court by Paul Smith and Gerald Evelyn, the Attorney General had agreed to investigate and prosecute, if warranted, allegations that Judge Waterstone, Karen Plants and two Inkster police officers had either testified falsely or knowingly allowed perjured testimony to be presented to the jury in 2005 in the cases of the People v Alexander Aceval and Ricardo Pena.  After the Wayne County Prosecutor recused herself because of a conflict of interest, four other counties also refused the assignment.

However, it turns out, the AG had a difficult conflict of interest himself.  Following his conviction, Aceval filed a Federal Sec. 1983 civil rights case against Plants, the two officers, 13 other defendants and Judge Waterstone, claiming that the judge and the others violated his due process rights by knowingly allowing the admittedly perjured testimony to go unchallenged.  The Supreme Court, as is routine, directed the AG to represent Judge Waterstone in defending the allegations.  Steve Cabadas of the Public Employment Elections and Torts division of the office, spoke to Judge Waterstone on three separate occasions and filed an answer to the complaint, denying all the allegations.  Aceval's lawsuit was subsequently dismissed for failing to provide the court with a valid address.

After accepting the assignment to investigate and prosecute the case, the AG assigned Assitant AG's Bill Rollstin and John Dakmak to the case.  First, an investigator went to Judge Waterstone's home, had afternoon coffee with her and interviewed her, implying that the investigation was targeting APA Plants and the others, never telling her that she was a target of the investigation.  Next, the AAG's issued the judge an investigative subpoena and she appeared at the Detroit office, waived her right to counsel and answered their questions surrounding Aceval's trial. 

Because of the conflict of interest in prosecuting a former client of the AG's office under MRPC 1.7, 1.9 and 1.10, Judge Waterstone moved the 36th District Court to disqualify the Attorney General and dismiss the complaint prior to any testimony being taken.  The District Court denied the motion, Judge Kenny affirmed and the Court of Appeals denied the application for leave to appeal.  The Michigan Supreme Court, however, remanded the matter to the COA as on leave granted on the conflict of interest issue only. 

AG Cabadas, in an attempt to persuade the court that no confidential communications from Judge Waterstone were ever divulged to either Rollstin or Dakmak because she never confided anything to him, submitted an affidavit to that effect.  The Court, however, held that Cabadas' affidavit was "disingenuous" in light of Judge Waterstone's contrary affidavit and the answer he filed to Aceval's complaint.

MRPC 1.9 dictates that an attorney may not represent a new client whose interests are adverse to an old client in the same or substantially related matter, unless the client waives the conflict and consents.  MRPC 1.10 states, in addition, that no lawyer in a firm can represent a client in violation of MRPC 1.9.  Here, the Court inferred that confidential information was communicated from Cabadas to Rollstin and Dakmak, especially in light of the unusual circumstances of a judge being prosecuted.  "The Attorney General has an affirmative duty to perform a conflict check before undertaking the prosecution of a judge or other person whom the office is statutorily required to defend."

A criminal defendant bears the burden of establishing that she has been prejudiced by the dual representation and, here, the Court found that she was.  The AG's investigator's tactics in getting a statement from Judge Waterstone were, according to the Court, disturbing.  He sat down for coffee with her in her home, surreptitiously recorded the conversation, never told her that she was the subject of the investigation and implied that she was not when she asked.  The Court held, regardless of what agency would ultimately prosecute the case, the statement could not be used.

Ultimately, the Court found that the Michigan Attorney General was conflicted out and order the entire office to withdraw from the prosecution.  It will be interesting to see how this matter plays out, given that the AG is not conflicted when it comes to Plants and the two officers.  Does the prosecution continue with the AG prosecuting three of the defendants and a separate prosecutor representing the People only as to one?  What county will now take this matter when four have already declined?  We will keep you posted as to any new developments in this interesting case.